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Introduction

One of the notions that most African countries have been grappling with is in the province of
Human rights and that is the elimination of all forms of discrimination against women and
championing the rights of persons with disabilities. This paper will critically analyse how
Zambia as a country has fared in the implementation of this. It will do so with the help of case
law and thereafter end with a conclusion.
Article 1 on the Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW) defines discrimination against women as:
... any distinction, exclusion or restriction made on the basis of sex which has the
effect or purpose of impairing or nullifying the recognition, enjoyment or exercise
by women, irrespective of their marital status, on a basis of equality of men and
women, of human rights and fundamental freedoms in the political, economic,
social, cultural, civil or any other field.
By accepting or acceding to the Convention, States commit themselves to undertake a
series of measures to end discrimination against women in all forms including:

to incorporate the principle of equality of men and women in their legal


system, abolish all discriminatory laws and adopt appropriate ones

prohibiting discrimination against women;


to establish tribunals and other public institutions to ensure the effective

protection of women against discrimination; and


to ensure elimination of all acts of discrimination against women by
persons, organizations or enterprises.

Countries that have ratified or acceded to the Convention are legally bound to put its provisions
into practice. Zambia has only domesticated the provisions of the CEDAW instrument through
the enactment of Gender Equity and Equality Act No. 22 of 2015. From time immemorial,
women in Zambia many a times have been marginalised as regards the enjoyment of their rights.
One of the celebrated cases in which a females enjoyment of their rights was infringed upon
based on gender involves Sara Longwe v Intercontinental Hotels Limited.1 Sara Longwe had
gone to Lusakas Intercontinental hotel with her partner. At the hotel, Saras partner remained in
the car in the car park while she went to the hotel to fetch for her two children who were
1 1992/HP/765; [1993] 4 LRC 221.

attending a birthday party there. She was not allowed access by hotel security on the grounds that
she was unaccompanied by a male partner. The hotel policy dictated that it would not allow
access to certain parts of the hotel to unaccompanied women. This restriction did not apply to
unaccompanied men. She saw this as discrimination based on gender and contrary to the nondiscrimination clause in article 23(4) of the Zambian Constitution 2, so she decided to petition the
High Court.
Zambia has a dual legal system, to wit, customary and statutory law. One of the problems
obtaining in the application of the customary law is that it lacks uniformity and is incongruous
with the provisions of the law. An example of this is found in Section 12 of the Local Courts Act 3
which provides:
(1) Subject to the provisions of this Act, a Local court shall administer
(a) the African customary law applicable to any matter before it in so far as such
law is not repugnant to natural justice or morality or incompatible with the
provisions of any written law.
Here the law provides that customary law can only be applied subject to no being repugnant to
natural justice or morality or incompatible, the problem comes in when determining what is
repugnant. However, some customary laws that are repugnant to natural justice or morality are
still enforced up to this day. The Mwiya4 case is a case in point. It was heard that the Lozi custom
does not entitle a divorced woman to property settlement, let alone maintenance. And such a
repugnant custom was upheld by the courts of law.
In similar circumstances, another female attempted to enter a different hotel in Lusaka, the
Holiday Inn, when she too was denied access by the hotel security. Just like in the Sara Longwe
case, in Elizabeth Mwanza v Holiday Inn Hotel, 5 the hotel security cited policy which restricted
unaccompanied women from accessing certain parts of the hotel. However, in this case, the judge
2 Chapter 1 of the Laws of Zambia.
3 Chapter 29 of the Laws of Zambia.
4 Mwiya v Mwiya [1977] ZR 113.
5 Elizabeth Mwanza v Holiday Inn Hotel (1997) HP/2054.
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did not see anything wrong with the restrictive hotel policy. In his ruling, Chitengi J found there
was no violation of the prohibition from discrimination as alleged by the petitioner and found the
restriction on unaccompanied women to be reasonable based on the same public policy which
Sara Longwe had used in seeking remedies from the Court.
In another case,6 Edith Nawakwi was denied to include her children on her passport by the Chief
Passport Officer, unless she gets consent of their biological father with whom she no longer has
any contact. This was only demanded of female guardians while their male counterparts did not
have to produce consent of the mothers of their children when applying to add them to their
passports. She successfully petitioned against that decision. The judge in quashing the Passport
Officers decision as discriminatory cited the countrys ratification of CEDAW, though not yet
domesticated at the time. Based on this case, the Immigration Department has since struck out
the offensive regulation.
The Right of Persons with Disabilities
Persons with Disabilities Act7 defines disability as:
... a permanent physical, mental, intellectual or sensory impairment that alone, or
in a combination with social or environmental barriers, hinders the ability of a
person to fully or effectively participate in society on an equal basis with others.
The Zambian Constitution gives no specific provision stipulating the rights of persons with
disabilities. In Article 23,8 it provides for protection from being discriminated on the basis of
race, tribe, sex, place of origin, marital status, political opinion or creed. However, there is no
provision against the discrimination on the ground of disability. Persons with disabilities are a
special case and therefore, need to have their rights protected and guaranteed. There is some
progress though regarding protecting and guaranteeing the rights of persons with disabilities by
domesticating of international instrument, Convention on the Rights of Persons with Disabilities
6 Edith Nawakwi v Attorney General (1991) HP/1724.
7 Persons with Disabilities Act No. 6 of 2012, s. 2.
8 The Constitution of Zambia Act, Chapter 1 of the Laws of Zambia, as amended by the Constitution of
Zambia (Amendment) Act No. 2 of 2016.
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of 2008, by way of enacting a relevant piece of legislation, Persons with Disabilities Act, No. 6
of 2012.
Accessibility is one of the rights that people with disabilities enjoy. The Sela Brotherton v
Electoral Commission of Zambia9 is but one case that shows that the rights of persons with
disabilities have not been protected and guaranteed as is enshrined in the Disabilities Act. 10 In the
Brotherton case, the High Court held that failure by the Electoral Commission of Zambia to
provide accessible registration and polling stations to persons with disabilities amount to
unlawful discrimination based on disability, contrary to Article 23 of the Constitution. 11
Furthermore, it limited the rights of persons with disabilities to exercise their rights by not
providing accessible premises and services. The Commission took little or no account of persons
who have physical impairments thus excluded them from the mainstream of social activities.
Court proceedings were instituted in Sela Brotherton v Attorney General & 16 Others 12 seeking
an order to compel adjustments to public and private buildings so as to make them accessible to
persons with disabilities. The plights of the persons with disabilities could not be succeed on
technical grounds. The High Court held that the provisions of the Act 13 did not have retrospective
effect. It cannot apply to buildings constructed long before the Act came into operation.
Conclusion
Having looked at some cases involving discrimination against women and discrimination based
on disability, there is much more that could be done in terms of implementing the two
international instruments locally. The status quo of the law in regard to safeguarding promoting
and protecting the rights and interests of women and persons with disabilities is inadequate.

9 2011/HP/0818.
10 Persons with Disabilities Act No. 6 of 2012, s. 19.
11 Chapter 1 of the Laws of Zambia.
12 2009/HP/1402.
13 Persons with Disabilities Act, Chap 65 of 1996, now repealed by the Persons with Disabilities Act No.
6 of 2012.
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Bibliography
Statutes
Gender Equity and Equality Act No. 22 of 2015.
Local Courts Act, Chapter 29 of the Laws of Zambia.
Persons with Disabilities Act, Chapter 65 of 1996, now repealed by the Persons with Disabilities
Act No. 6 of 2012.
The Constitution of Zambia Act, Chapter 1 of the Laws of Zambia, as amended by The
Constitution of Zambia (Amendment) Act No. 2 of 2016.

Case Law
Edith Nawakwi v Attorney General [1991] HP/1724.
Elizabeth Mwanza v Holiday Inn Hotel [1997] HP/2054, unreported.
Mwiya v Mwiya [1977] ZR 113.
Sara Longwe v Intercontinental Hotels Limited [1992] HP/765; [1993] 4 LRC 221.
Sela Brotherton v Attorney General & 16 Ors [2009] HP/1402.
Sela Brotherton v Electoral Commission of Zambia [2011] HP/0818.

International Instruments
Convention on the Elimination of All Forms of Discrimination against Women of 1979.
Convention on the Rights of Persons with Disabilities of 2008.